JMO: The Many Ways to Preserve Texts for ESI Evidence in Litigation

· ESI,Evidence,Litigation

When Whitney Nicole Shaffer fumbled her cellphone in the bathroom one day, she did more than break an expensive cellphone. Along with her working phone, she also ended up losing some key texts in which she had supposedly discussed an affair she was having with her boss. And because those texts were evidence in her sexual harassment case, she came close to losing her entire case.

Luckily for her, the judge allowed witnesses who had seen the texts to testify about them instead. But along the way, Judge Max Cogburn, who sits on the federal bench in the Western District of North Carolina, gave some good guidance on how to preserve electronic messages for electronically-stored information ("ESI") evidence to be used later in litigation.

After Ms. Shaffer dropped her phone, it hopelessly broke. So she made a claim with her insurance carrier. Her insurance company required her to turn in her phone, along with her SIM card. Once that happened, she no longer had any record of the texts. Her carrier only had a record of the time the texts were made, not what they said.

Some of those texts were about an affair she was having with her boss. When she sued her boss for sexual harassment, her boss's attorney demanded those texts as proof of the affair. When she couldn't, her boss moved to dismiss, saying the loss amounted to spoliation (in other words, intentional destruction of evidence), because she knew she was going to sue at the time she gave up her cellphone.

But Judge Cogburn refused to dismiss the case, mainly because the evidence was not crucial to the case. The affair was not in doubt, the judge pointed out, as both sides admitted it.

But Shaffer should have known better and preserved her cellphone, the judge wrote.

"Once it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material".

The judge recommended:

printing out the texts,

making an electronic copy of such texts,

cloning the phone,

or having her lawyer take possession of the phone and telling Shaffer to simply get another one.

Although the judge's ruling is not binding elsewhere, it is good instruction on how to preserve ESI for later litigation.